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Marvel and DC Enforce "Superhero" Trademark
An anonymous reader writes "GeekPunk is announcing that their flagship comic book title featuring superheroes patronizing their favorite bar & grill during their off-hours will now be entitled Hero Happy Hour beginning with the fifth issue of the ongoing series.
According to creator Dan Taylor, "The decision to change the title was brought upon by the fact that we received a letter from the trademark counsel to 'the two big comic book companies' claiming that they are the joint owners of the trademark 'SUPER HEROES' and variations thereof."
" Read the recent boingboing post for more background as well.
Look, up in the sky, its a shattered childhood.
Reminds me of the old Onion article "Microsoft to patent zeroes, ones." Isn't the term "Super Hero" pretty generic?
-Arthur
Cave ne ante ullas catapultas ambules
Before this thread is consumed by non-lawyers editorializing about what a legal travesty this is, let me first put forth a question: If this argument was about the term "Superman" instead of "Superhero," would it be any less absurd? I mean, surely we'll all agree that "Superman" is a clearly trademarkable name, and has been capitalized on by its creators for decades. But isn't the coined word "Superman" just as generic as the coined word "Superhero?" Aren't they both merely the concatenation of two relatively common words in the English language?
Let's just admit that they've created something new, and it's not entirely unreasonable for them to wish to protect their exclusive use of their creations.
Like woodworking? Build your own picture frames.
Yep... these boys dont mess around. I played in a band for several years called "boywonder" and when a band of the same name surfaced, we naturally went after trademark rights. DC Comics were quickly on us requesting that any product with the use of the name be sent to them for examination citing infringement.
We had released two albums under the name and they were very good about finally allowing us continued use of the name after about 8 months but, unfortunately, we had already changed names given a CD release and tour hanging over our heads.
Registration Date
March 14, 1967
Owner
(REGISTRANT) BEN COOPER, INC. CORPORATION NEW YORK 33 34TH ST. BROOKLYN NEW YORK
(LAST LISTED OWNER) DC COMICS, INC. CORPORATION ASSIGNEE OF NEW YORK 666 FIFTH AVENUE NEW YORK NEW YORK 10103
(LAST LISTED OWNER) MARVEL ENTERTAINMENT GROUP, INC. CORPORATION ASSIGNEE OF DELAWARE 387 PARK AVENUE SOUTH NEW YORK NEW YORK 10016
<grrr
Is it my imagination or has this never before been enforced? If this is the first time that it has been enforeced, can their hold on this generic term be great?
This really does seem as silly as a PB&J parent, but it sure might be legel in the eyes of the current system.
-- Prepared at the direction of, or to be sent to Legal Counsel, in anticipation of litigation. Attorney Client Pri
That lawyer is operating a cartel running a "restraint of trade" operation. If I start a "car" company, and the lawyer for GM, Ford, Toyota and Mercedes tried to stop me from "abusing their trademark", I'd be deluged by lawyers slavering for their piece of the antimonopoly action.
That's the kind of abuse that launched MCI against the AT&T monopoly, opened the telco industry to some competition, and enriched a generation of lawyers. This time, the comic can still do business while complying with the abusive Cease & Desist letter, while getting justice and bucks.
--
make install -not war
Um, is it just me or does the link go to a post from 2004?
And I'll probably get sued for this moment of lamentation...
The problem with socialism is that they always run out of other people's money. - Margaret Thatcher
WTF? A "news" site generally deals with current events. Or at the very least, mentions the rather relvant fact that this is history, not news. Of course, that would be assuming that the Slashdot editors actually RTFA.
If they have a valid trademark should use their trademark properly.
For example, the following use (from Marvel's web site) in it's correct adjectival sense:
Throughout World War II, Captain America and Bucky fought the Nazi menace both on their own and as members of the superhero team the Invaders, which after the war evolved into the All-Winners Squad.
You see here, that the use "superhero" adjective could in theory at least be used to differentiate their "team" product from similar products of their competitors. On the other hand, the following is clearly an improper use of their own presumed mark as a noun (and despite the capitalization, a common noun):
If you've ever wanted to hear your voice come out of a Marvel Superhero's body-or if you are looking for a chance to break into the world of voice acting-then this is your chance!
This should read:
If you've ever wanted to hear your voice come out of a Marvel Superhero character's body-or if you are looking for a chance to break into the world of voice acting-then this is your chance!
Using it as a common noun (which they do throughout their web site, although it is sometimes capitalized) is tantamount to admitting the term is generic.
Post may contain irony: discontinue use if experiencing mood swings, nausea or elevated blood pressure.
Faster than everybody else! Stronger than the weak! Able to leap to conclusions in a single bound! Sworn enemy of the dreaded RIAA! Destroyer of the Gates of hell! I'd have been a superhero if I weren't deathly afraid of lawsuits.....and girls :p
He who would be a man, must be a nonconformist. -- Emerson
Superman, used as a proper noun, refers to a guy who wears blue tights and red underwear with a red cape, shoots lasers from his eyes, flies, and is vulnerable to kryptonite.
Superman, used as a common noun, is a variant of superhuman.
The former usage is clearly covered by trademark; the latter is clearly not.
In this case, the term 'superhero' is common enough to be outside trademark, in my opinion. It's a plain compound, and while the decomposition would refer to a superset of the composed meaning, it's pretty damn close. Anyway, the OED first lists the term being used in 1917 by Greenhill Press, so they would hold the trademark if anyone. The company appears to be defunct, though.
"The White House is not an intelligence-gathering agency," -- Scott McClellan, Whitehouse spokesman.
This had nothing at all to do with copyright. Nor is the concept being claimed here.
It is the word "Superhero" that is being claimed as protected by trademark law. Within the letter of the law, they may have a vaild claim.
That doesn't make them any less foul, though.
Also, I think that much argument can be made that they have long since lost any claim to the trademark. They've not been defending it at all until now. If you don't defend a trademark, you lose it.
for trademark of the word "superhero" and variations thereof back in 1981. Apparently, there is some controvesy over the joint filing of this shared trademark as trademark law has a "single source" requirement. However,
there is precedent of two companies sharing a trademark, but is supposed to be quite quite rare.
I am not sure how accurate this information as a lot it is from disparate sources, so someone please correct me if I am wrong.
Anyway, I don't see how Marvel/DC can claim a trademark on a word that has been in the popular lexicon for over fifty years.
" Isn't the term "Super Hero" pretty generic"
Trademark laws exist to protect the consumer, not the producer.
If you buy a brown fizzy beverage, and if it says "cocacola" you should have some sort of confidence you're buying CocaCola brand of fizzy soft drink.
Is there some consumer confusion that your "superhero" is not a DC or Marvel brand of superhero? To say nothing of the fact if don't activly protect your mark you lose it.
Goog sez: "Results 1 - 50 of about 7,330,000 for "superhero""
If Marvel and DC jointly own the trademark on "superhero" I'd be saying the words "Anti trust". A LOT. And ignoring the C&D letter.
Need Mercedes parts ?
Batman is a normal English word - it's a rank in the British Army. I'm not sure if the rank is still current or not, and I'm not certain if it's only the British Army. But it's definitely not an invented word for superheroes. In fact, I've always suspected the idea for the Batman character came from the silliness of the original batman word.
Cheers,
Ian
They haven't trademarked the concept of a super hero, just the term. What I don't get is how one could trademark a classification or genre. The way it seems to me (and please let me know if I'm way off base), it's like if one record company could trademark a genre (let's say "punk") and then prevent all other companies from releasing music using the genre name, regardless of the fact that that's the correct classification... and also preventing people from making a "punk hour" at a bar even if they'll be having a live performance and the term is applicable. Does that seem like a good analogy?
-=-=-=-=-=
I'd rather be flamed than ignored.
I believe 'super hero' would fall under a genericized trademark. See here: http://en.wikipedia.org/wiki/Genericized_trademark
If the mark does not perform this essential function and it is no longer possible to legally enforce rights in relation to the mark, the mark may have become generic. A generic mark forms part of the public domain and can be commercially exploited by anyone.
nothing
I remember the GURPs supers book calling the SuperHeros 'Metahumans' becaues Marvel/DC threatened to sue. It sucked rocks then, and it sucks rocks now. It's ridiculous, a trademark identiifies a business. Marvel's a trade mark, so is DC. I don't know of any company called 'SuperHero'. Shit, why not let them patent it while your at it so the next time someguy flys around in tights they can sue.
Hi! I make Firefox Plug-ins. Check 'em out @ https://addons.mozilla.org/en-US/firefox/addon/youtube-mp3-podcaster/
Worst use of trademark law.... ever
Back in the day, we didn't have your fancy-schmancy foryums and blahgs on everyone's webpage. We had ourselves the NEWSGROUPS.
And we liked it!
In order to discuss super-hero based RPGs on the rec.games.frp.* hierarchy, our posts would get lost. I decided to act upon this and had rec.games.frp.super-heroes created. There was much (ridiculous) debate ([sarcasm]on the internet? NO...[/sarcasm]) regarding the name.
We couldn't used "Superheroes" because of the joint trademark. We couldn't use "Supers" because someone (idiot) thought it meant the forum was only for discussion of GURPS: Supers . So a news admin suggested that we hyphenate. I mean, it's not like we were selling anything.
I maintained the FAQ for years, but then that C++ Hybrid guy kept spamming the Newsgroup and most of us left to go to various other gaming forums.
I met the guys who write and draw "Hero Happy Hour" at comic conventions a couple times. The book is a fun read, and the creators are funny guys. They know they aren't going to make a fortune, they're just making a comic because they want to make a comic. I've never seen any publicity for their comic until now, which is a damned shame. "Hero Happy Hour" is easily the best small press/amateur title I've ever picked up.
Anyone who is into comics would do well to pick up whatever issues they still have in print, 'cause they're worth the money.
Anyway, I remember Marvel and DC claiming trademark on Super-Hero in the early 80s if not earlier, and just about everyone who writes about people with super-powers, who doesn't work for Marvel or DC, uses some other term to describe them. I can't believe they're enforcing their trademark on a couple guys whose comics have a print run that's probably 1/100 the size of an average "big name" book, but they've had the right to do so for over 20 years.
-- I wanna decide who lives and who dies - Crow T. Robot, MST3K
Nobody said anything about 'concepts'.
When they claimed trademark on the term "superheroes" they sure as heck did say something about "concepts". Unlike "Superman", or "Batman", or "Spiderman", the term "superhero" doesn't refer to anything in particular, but rather a generic set of things. Trademark is not like a patent, where the holder can use it to stake out a market segment and keep competitors out. THe purpose of trademarks is entirely for consumer protection, to prevent confusion in the marketplace. The fact that the term "superhero" exists in the common vernacular as a generic concept that nobody (other than a handful of jackass lawyers and executives at DC & Marvel) associates with any particular company's or companies' products, combined with the fact that their defense of said trademark over the last 40 years has been practically nil, obviously raises huge questions as to the validity of the trademark.
Conclusion: the Empire squashes the Federation like a bug. Accept it.
You'll all see what happens when I trademark "The"! That way, in the (TM) future you'll all have to pay me rolaylties for the (TM) use of the (TM) word "the" (TM) in any of the (TM) sentences you ever write or speak! The (TM) profits will be endless! All the (TM) people in the (TM) world will depend on the (TM) decision I make about their use of the (TM) world "the" (TM)!! Ah, the (TM) future....
It's still not a good thing, but note that Super Hero Happy Hour received the message in 2004. It's just now being brought to everyone's attention- and as others have pointed out, they've had the trademark for some time. The original BoingBoing post noted that Marvel was using a museum to strengthen its trademark argument (the TM note at the bottom of the page).
Still, between this and the NCSoft suit, I'm not at all happy with Marvel nowadays. This is the kind of thing that could hurt their authors. The Underwear Pervert blog (Boing Boing's suggestion to replace super heroes) gives examples of where authors published by these guys have used materials in the public domain, which they should be able to do.
Marvel and/or DC must feel that this comic is stealing some of their market, or they wouldn't have bothered with this. I don't know what they were worried about though, since I read a fair number of comics, and I'd never even heard of Super Hero Happy Hour.
Of course, I have now . . . .
If you don't defend a trademark, you lose it.
Only kinda. The parent post clarifies a fair amount (as in steering you away from patent or copyright claims) but misses the right question:
Does the relevant class of potential consumers (that is, the comic-book-purchasing public) understand the term "SUPERHERO" to function as an indicator of source, origin, sponsorship, or affiliation when used in association with comic books, and do any consumers that have that understanding believe that the source/origin/sponsorship/affiliation is with DC and Marvel?
Let me summarize a bunch of what the irrelevant who-used-it-first posters are thinking: no freaking way.
Where you been the last few dozen, 20, 30, 40 years? Trademark laws exist to protect "intellectualy property" so the owner can profit. Way it is, way its been. News? No. Right? No. Life moves on.
"Who are in control, they are not in control of anything - they don't even control themselves!" - Glen Beck
These words have become commonly used household terms now. I think the trademarks should no longer apply. Really... if someone wants to make a fan-flic called Superman 10, then why not? It's not like, by the time your product is a household word, you haven't made much money yet.
They must have confused this universe with a parallel dimension where only DC and Marvel make superhero comics. :)
I don't know that it matters too much for the conversation, but the last news from the website (dated Feb 23, 2005) says the comic book will no longer be published.
The article linked in this article is from January of 2004...
Little late for us all to be outraged...
I think yes, the term is used for a lot of things. Here's what the patent and trademark office shows regarding this:
SUPERHERO is owned by David & Goliath, Inc. for use on clothing
SUPER HERO Oooh, this one's for skin cream
So it isn't reserved across everything, where is it reserved?
SUPER HEROES FOUND IT!!!
Goods and services: " PUBLICATIONS, PARTICULARLY COMIC BOOKS AND MAGAZINES AND STORIES IN ILLUSTRATED FORM [(( ; CARDBOARD STAND-UP FIGURES; PLAYING CARDS; PAPER IRON-ON TRANSFER; ERASERS; PENCIL SHARPENERS; PENCILS; GLUE FOR OFFICE AND HOME USE, SUCH AS IS SOLD AS STATIONERY SUPPLY;] NOTEBOOKS AND STAMP ALBUMS )). FIRST USE: 19661000. FIRST USE IN COMMERCE: 19661000"
So, they technically can ONLY press this against comic book writers (and other publishers).
I wouldn't consider the mad hatter mad. Just reality impaired. He sure can make a mean cup of tea.
If this is allowed to continue then the next thing you know some company will trademark generic terms like "Windows". Sheesh..
It's true that the best trademarks are made up words (like Microsoft (R) or Unix (R)). Then there is no crossover with regular usage -- your mark ONLY identifies your brand to anybody in any context. But that does not mean that a real English word cannot be a trademark. It depends on your market segment. Apple would not be allowable as a trademark for a brand of shiny red fruit, but it is perfectly workable as a trademark for a brand of computer. The operative question is whether it is identifiable to a specific brand by the consumer. The cross-licensing between DC and Marvel would appear to defeat that in this specific case. If it's that important to somebody, let him tell a jury and see what they think.
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Seriously, this is the dumbest thing I've ever heard. A trademark is a mark of trade. It's so you know who you're dealing with. If you buy Kleenex (TM), you know you're getting it from the same organization you did last time.
So if you hear "Super Hero Comic", do you know which organization you're dealing with? No, you don't. It could be either of two competing organizations that produced it. So it's not a trademark, it's just two big companies trying to keep competitors out. This should not be permitted.
-1 Uncomfortable Truth
Here's my line of thinking when I posed that question:
Ok, this guy's trying to refute this guy who claims that Marvel didn't coin the term "Superhero." However, all he says is that Superman was created in 1938. This doesn't directly refute the claim because "Superman" isn't the same as "Superhero". Now a couple of things are possible here:
1) He knows that they called him a superhero, but failed to mention it in his post. In this case, asking the question points out that this piece of information which is vital to connecting the argument was missing, which a) gives me the answer without any expended effort searching and b) might help that poster make better and more informative posts in the future, or
2) He doesn't know or knows that Superman wasn't called a superhero, at which point my question becomes a rhetorical refutation of his post. In this instance, I care less about the actual answer and more about pointing out the mistake in the post, as is fairly common on Slashdot anyway, as well as deflecting another attempt to post a true fact in order to create the impression that some other implication is true.
Ultimately, while I'm mildly curious to know whether or not Superman was called a superhero pre-1942, my curiousity doesn't extend to searching for some piece of evidence on the Internet to support that claim. You made the assertion without the key fact that makes it true, so it's not all that unreasonable to ask you to back up your implied claim. So if conversation is stimulated by my question and I happen to find out the answer, great. If not, well frankly, my life isn't going to be less complete.
For example, APPLE is a designation (a word), which is distinctive (arbitrary -- we'll get to what that means in a moment) used to identify the source from which computers (a kind of good) so marked originate (the Apple company) and which distinguishes those good and their source from others (e.g. Dell, IBM, Sony).
So distinctiveness is one of the necessary elements for trademarkability. There is a continuum of distinctiveness. From most to least they are:
Fanciful, arbitrary, and suggestive marks are always distinctive. Provided that the other requirements for trademarkability are met, they can make good trademarks.
Descriptive marks can either be merely descriptive, or can have acquired distinctiveness (also known as secondary meaning). The former are not distinctive, the latter are. In order to acquire distinctiveness, it has to be shown that the public associates the mark with the source of the marked goods and services, which is generally shown through various kinds of evidence. Even when a descriptive mark is distinctive, the non-distinctive form of the mark is still not protected.
Generic marks are never able to function as trademarks.
Genericide is what happens when the public stops considering a trademark as distinctive of the goods or services of a specific source, and starts to consider it to be a generic term for the goods or services as a class. Their change in perceptions kills the mark. Often this is the result of overwhelming success by the mark holder. By dominating an entire industry, their mark ends up becoming associated with the industry, rather than with the mark holder specifically.
For example, let's suppose that the proper name for a trampoline is actually a 'bouncing apparatus.' Thus, if you buy one from the Trampoline company, it is a Trampoline-brand bouncing apparatus. If you buy one from WidgetCo, it is a WidgetCo-brand bouncing apparatus. But if everyone thinks that the thing you buy is called a trampoline, regardless of what company you buy it from, then Trampoline loses their mark, and WidgetCo can start to advertise WidgetCo-brand trampolines.
It's kind of like how Honda Civics and VW Jettas are both kinds of cars. If the Civic name became generic for any car, regardless of manufacturer, people would talk about how the VW Jetta is a sort of civic. The word would have become a synonym for car. More specifically, it would be a word that describes the good itself (a car) rather than the origin of the good (a car that was made by Honda).
I went to www.thermos.com and there is a registered trademark symbol next to their name.
Well, first, there is a difference in contexts. Thermos is not generic for a manufacturer; it's generic for insulated flasks. (n.b. how they studiously avoid using the word thermos to refer to the good itself -- they use the term 'beverage bottle' a lot; this helps their case) Secondly, it's actually in a wierd case; some generic uses are allowed, and some aren't, and it's been i
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- None can love freedom heartily, but good men; the rest love not freedom, but license. -- John Milton
Assuming for the sake of argument that D.C. and Marvel did invent the term "superhero", it has obviously lost its exclusivity to these companies in common usage. Much like Zipper and Asprin, which began life as trademarks but became "ordinary" words through usage and were properly ruled to be such. If the legal system still worked, I would suggest other comic publishers ignore D.C./Marvel's attempt to abuse trademark law to surpress competition. But since these days the court could (ignoring the relevent precident) rule in favor of D.C./Marvel . . .